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Wednesday, September 11, 2013

Ind. Decisions - Court of Appeals issues 2 today (and 4 NFP)

For publication opinions today (2):

In Kari Everhart v. Founders Insurance Company, an 11-page opinion, Judge Brown writes:

Kari Everhart appeals from the court’s grant of summary judgment in favor of Founders Insurance Company (“Founders”) and from the denial of Everhart’s motion to correct error. Everhart raises one issue which we revise and restate as whether the court erred in granting summary judgment. We affirm. * * *

Everhart argues that “[t]he exclusion cited by Founders is not applicable in the instant case” because “the proximate cause of her injuries and damages was negligence on the part of . . . Club Coyote” and “the exclusion relied upon . . . is for intentional acts.” Everhart argues that “[c]learly, [she] has never contended that any employee or patron of . . . Club Coyote did anything intentionally,” and she points specifically to Interrogatory No. 6 for this proposition. * * *

This case turns on whether Everhart’s version of the events of what transpired and caused her injuries, as stated in Interrogatory No. 6, was a battery, because, if so, coverage under the Policy would be excluded pursuant to the Endorsement. * * *

The Endorsement excludes coverage for batteries committed by both employees of the insured and any other persons, and, as noted by Indiana’s definition of battery, a battery results if an individual acts intending to cause harmful contact with not only the person contacted, but also a third person, and harmful contact directly or indirectly results. There is no dispute that Elson intentionally pushed the patron, a third person, that the patron came into contact with Everhart, and that Everhart was harmed as a result by breaking her arm, and accordingly, Everhart was the victim of a battery on the premises of Club Coyote. We therefore conclude that the court did not err when it granted summary judgment in favor of Founders. * * *

For the foregoing reasons, we affirm the trial court’s grant of summary judgment in favor of Founders and its denial of Everhart’s motion to correct error.

In Donovan Johnson and Aileen Johnson v. Poindexter Transport, Inc., and Crane Service, a 14-page opinion, Judge Bradford writes:
On December 10, 2009, Appellant-Plaintiff Donovan Johnson was injured while working on a construction project in West Lafayette when a wooden form broke apart and fell from a crane that was being operated by an employee of Appellee-Defendant Poindexter Transport Inc. and Crane Service (“Poindexter”). On August 20, 2010, Donovan and his wife Aileen (collectively, “the Johnsons”) filed suit against Poindexter, alleging that Donovan was injured as a result of Poindexter’s negligence. Poindexter subsequently filed a motion to dismiss pursuant to Indiana Trial Rule 12(B)(1), alleging that the trial court lacked subject matter jurisdiction because the Johnsons’ exclusive remedy was to pursue a claim for benefits under the Indiana Worker’s Compensation Act (the “Worker’s Compensation Act”).

On November 23, 2012, the trial court granted Poindexter’s motion to dismiss. The Johnsons appealed the trial court’s order. Upon review, we conclude that the trial court lacked subject matter jurisdiction to hear the Johnsons’ claims because, under the provisions set forth in the Worker’s Compensation Act, at the time of the accident, Donovan and the crane operator were co-employees. Accordingly, we affirm. * * *

The determination of whether an employer-employee relationship exists ultimately is a question of fact. Argabright, 804 N.E.2d at 1166. “In making this determination, the fact-finder must weigh a number of factors, none of which is dispositive.” Id. In Hale v. Kemp, 579 N.E.2d 63, 67 (Ind. 1991), the Indiana Supreme Court identified these factors as: (1) the right to discharge; (2) mode of payment; (3) supplying tools or equipment; (4) belief of the parties in the existence of an employer-employee relationship; (5) control over the means used in the results reached; (6) length of employment; and (7) establishment of the work boundaries. Upon review, these factors must be weighed against each other as part of a balancing test as opposed to a mathematical formula where the majority wins. See GKN, 744 N.E.2d at 402. When applying this balancing test, the greatest weight should be given to the right of the employer to exercise control over the employee. Argabright, 804 N.E.2d at 1166 (citing GKN, 744 N.E.2d at 405-06). * * *

Balancing the Hale factors and giving considerable weight to the element of control, we conclude that there was sufficient evidence before the trial court to conclude that Creel was a borrowed employee of R.L. Turner. Accordingly, we conclude that the Johnsons are barred from bringing a claim for damages against Poindexter because their exclusive remedy is to pursue a claim for benefits under the Worker’s Compensation Act. See Argabright, 804 N.E.2d at 1168-69 (citing Ind. Code § 22-3-2-13). Consequently, we further conclude that the trial court properly granted Poindexter’s motion to dismiss pursuant to Trial Rule 12(B)(1), as it lacked subject matter jurisdiction to hear the case. The judgment of the trial court is affirmed.

NFP civil opinions today (0):

NFP criminal opinions today (4):

Jane Kleaving v. State of Indiana (NFP)

Ronald D. Hayes v. State of Indiana (NFP)

Yohau Flame v. State of Indiana (NFP)

Dewayne Perry v. State of Indiana (NFP)

Posted by Marcia Oddi on September 11, 2013 10:41 AM
Posted to Ind. App.Ct. Decisions